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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, January 2, 2013

The Fourth Amendment is soft on crime

If you remember politics from the 1980's, it was the kiss of death if your political opponent said you were soft on crime. That's how George H.W. Bush got elected in 1988. Anyway, it may surprise you to know that much of the Bill of Rights exists to protect criminal defendants. Including the Fourth Amendment.

The case is United States v. Murphy, decided on December 4. The police nailed the two defendants and found drugs in the car. The stop and search was recorded on police video. This is the rare case where the government loses the suppression hearing; the district court ruled against the police, who made an illegal stop of defendants' car. The Court of Appeals (Calabresi, Lynch and Lohier) affirms, and the drug evidence is suppressed for good.

The police testified that they stopped the car for not signaling onto the highway exit. But the district court had a factual basis to find that, instead, the police pulled over the defendants for no reason by turning on the police vehicle's emergency lights. In fact, there was overwhelming evidence that the police pulled over the defendants this way, particularly through the police-generated video and contemporaneous paperwork. The government's contrary factual arguments are in vain; the Court of Appeals is siding with the district court's findings, reached after a two-day hearing.

The government next argues that even if the stop was unjustified, the search was legal because the defendants consented to it. The government is allowed to make this argument. "When consent to search is preceded by an unlawful government seizure, the evidence obtained from the search must ordinarily be suppressed unless the Government shows both that the consent was voluntary and that “‘the taint of the initial [seizure] has been dissipated.’” The facts favor the defendants here. The car was seized only moments before the defendants supposedly consented to the search. The police tried to pull off a tactical maneuver called the "Kansas Two Step" in which they step back for a moment while the defendants ponder whether to consent, but the Second Circuit is not buying it. The government also argues that the consent is untainted by the illegal stop because the trooper was "calm and respectful ... during the encounter." That may be true, but it's not the kind of change in circumstances that can separate the stop from the search.

The defendants also made incriminating statements. Those statements are also suppressed. The police did not properly read their Miranda rights. The Court of Appeals agrees with the district court that, for one defendant, the Miranda reading gave an incomprehensible waiver instruction. As for the other defendant, he did not knowingly waive his Miranda rights, either. There is no evidence that he was even read his Miranda rights to start with.

So the drug evidence is suppressed and so are the incriminating statements. The police blew it, and these guys walk. The judges in this case, at the district and appellate court level, are mostly former prosecutors. It was the Constitution that got the defendants off.